There seems to be a general impression that, since the Civil Procedure Rules came into force, all experts have become neutral, interested only in achieving the overall ends of justice, with no regard for the source of their instructions. Here are a couple of quotes from judges in cases in which I was involved moderately recently, suggesting that poor quality witnesses are still being used:

"His evidence on this matter had been given with conviction and authority, he stating that he had a clear recollection of the wording. When he had to admit that he was wrong and to accept that he had been misleading the Court, he stated that he had made an assumption. This conduct can only be castigated as both disgraceful and dishonest. It clearly casts doubt upon the remainder of his evidence and the independence of his opinions.".

"Dr N's failure to consider it further, even as a check on other perhaps less reliable methods of assessing speed, casts doubt on the rest of his evidence and on the conclusions he expressed.".

I believe that it is the experience of most practitioners in the area of catastrophic personal injury claims that experts are very much the same as they always were; some are knowledgeable and neutral, but others are deficient in one or both respects. Selection is therefore fundamentally important.

Experts have always been vital to well-managed personal injury litigation. A good expert, carefully selected for his or her expertise and independence, can add millions of pounds to a claim. A bad one can either de-value compensation by that amount or, worse still, can let you down whilst giving evidence, so that disaster strikes. Selection of experts is one of the most important parts of the advocate's function, and is surely one area in which trial lawyers (usually barristers) can and should excel.

It may be necessary to emphasise that I regard a good expert as one who is genuinely knowledgeable on his or her topic, who is fair, and who has the strength of mind and character to express his views clearly and firmly, but also to take account of points made to him which might suggest that his opinion is incorrect or insufficient. Speaking as a claimants' lawyer, I would say that the search for a fair result is a search which can be helped enormously by a good expert, and sabotaged by a bad one. It would be nice if all experts, both for claimants and defendants, could always be relied on to act in accordance with the guidance; "It is the overriding duty of members to act at all times with integrity, fairness and impartiality....": The British Academy of Experts.

A change which may be taking place is that litigators may start to keep detailed records of experts, not merely grading them (as is commonly required by quality systems), but noting comments on their observed performance. I have been doing this for the last ten years; I have a list of over a thousand experts, and they only get onto my list if I read one of their reports, or see them in consultation, or they give evidence in a trial in which I appear. Once they are on the list, it is sensible to add comments made by respectable commentators (eg other litigators, or judges in reported cases). There is no substitute for the barristers' experience in this area; to see an expert give evidence really is the ultimate test, and a party is entitled to have more confidence in a case founded on good quality witnesses.

This database of experts has two purposes; first, to record the performances of the experts, so that a decision whether to use one in a particular case can be based on solid experience and evidence. Secondly, we are surely approaching the American practice of attacking experts on the basis of what they have said previously, or on their general practice. I get the impression that it is now more common for experts to be questioned about the claimant/defendant split of their practice, and possibly also about what evidence they have given in other cases.

In my opinion, lawyers for both claimants and defendants should still be careful of the apparently respectable expert on the other side. It is so easy to be daunted or dissuaded by firm opinions given by such experts, but part of the expertise of personal injury litigation is to know the experts, and to perceive when they are not giving respectable opinions.

Apart from the issue of whether an expert can consider a case neutrally and give evidence effectively, it is essential to select someone who is genuinely appropriate for the precise nature of the problem. It is common in brain injury litigation for practitioners to start with a neurosurgeon or neurologist, but that may well not be necessary. What is likely to be of more importance is the outcome following the injury, which may be better considered by a neuropsychologist. Again, the effect of a severe brain injury can be very variable, meaning that different experts would be suitable for different claimants.

An interesting further development might be that lawyers also keep records about judges, not only of their decisions on the Bench but also of their practices at the Bar or as solicitors. An obvious change made by the Civil Procedure Rules has been the willingness of the courts to interfere in the management of the preparation of cases.

I have seen some bizarre orders made; for example, a district judge directing that a defence expert should be the joint one, even on an issue of crucial importance such as care. When I say "defence expert", I do not merely mean one selected by the defence, I mean an expert who is well-known for his or her views tending to minimise a claimant's problems. It is easy to do that with many brain-injured claimants, and it is so important that it should not be done. Nevertheless, district judges and masters apparently sometimes feel quite comfortable in dictating that the claimant should be bound by the opinion of an expert whom their lawyers do not respect, and sometimes consider to be biased. Would the parties be satisfied if they knew that the judge who selected one of the obvious claimant/defence experts had himself used that expert when he was a claimant/defence lawyer?

I wonder whether the human rights legislation will prove to be important? One has to remember what Lord Woolf said in Daniels v Walker: "Article 6 has no possible relevance to this Appeal.". However, if courts try to prevent the parties from selecting experts of their choice (providing they are acting responsibly), it will only be a matter of time before it will be argued that they are acting unfairly.

These comments apply equally to both sides, of course, because each is entitled to feel satisfied at the end of the case that their client has had a fair hearing of all relevant issues. If both sides recognised that good quality experts add value, there would be much more settlement of catastrophic personal injury claims.

BILL BRAITHWAITE QC, of Exchange Chambers, who specialises in catastrophic brain and spine injury.